### 37e3.1
UNITED STATES DEPARTMENT OF TRANS 

### OFFICE OF HEARINGS

WASHINGTON, 

### D.L 

### E% 17 :\ 

### II: 08

) FEDERALAVlATlON ADMINISTRATION, ) 

### 1 Complainant, 

### 1 ) V. ) ) FAA DOCKET NOS.CP04CE0008 TARA J. FRABOTTA ) CP04CE0009 

### 1 and ) (Civil Penalty Actions) JOSEPH M. EICHMAN, 

### Respondents. )
) ) ) ) FAA-2005-20409 DMS NOS. FAA-2005-20408 

# - b

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C.GOODWIN
Found: 1. RespondentFrabottaviolated 14 C.F.R. §§121.575(a), 121.580, and 91.21(a)(l) as charged; 2. RespondentEichrnanviolated 14 C.F.R. #121375(a) and 121.580 as charged; 3. RespondentFrabotta is assesseda civil penalty of $3,300;and 4. RespondentEichman is assessed a civil penalty of$2,2200.



### I. Background
Ms. Tara 

### J. Frabotta and Mr. Joseph M. Eichman (hereinafter respectively “Frabotta” and “Eichman,” or, collectively, “Respondents”) were passengers on board a Champion Airlines flight operating from Cancun, Mexico, 

### to St. Louis, 

### MO 

### on February 

### 7, 2005 (Tr. 13-14). The Federal Aviation Administration (hereinafter“Complainant”or ”the agency”) issued separate Complaintsagainst them. The agency charged Frabottawith violations of $$121.575(a) (drinking an alcoholic beverage 

### not served to her), 121

### 380 (threatening or interferingwith a crewmember in

### the performanceof the crewmember‘s duties), and 91.21(a)(

### 1) (operating a portable electronic device). The agency seeks the maximum civil penalty 

### of $1,100 per charge, or a total of 

### $3,300 

### on the three charges. It 

### also charged Eichman, her companion on the trip, with violations of $9121.575(a) and 121.580. Against Eichmanthe agency asks for 

### a tota: civil penalty of 

### $2,200, also reflecting the maximum allowable assessment per chege.2

The matters were combined fer hearing 

### (see the Hearing Notice in each matter, served April 26, 2005). 

### I held an oral evidentiary hearing in Chicago, IL, home of the World Champion White Sox, 

### on August 

### I ,2005. Neither Respondentappeared.’ 

### I heard the testimony of Complainant’switnesses and determined that itwas reasonable to issue a written decision (Tr. 56).


### 11. Findings and Conclusions
At the hearing Ifind that by failing to appear, Respondents constructively withdrew their requests for hearing. 

### Ifurther find that by their absence they have constructively admitted to the truthfulness of the testimony of Complainant‘s witnesses (Tr. 9; see MawafagA. Abedallah cvb/a Sfinx Express Transit, Docket No. FMCSA-2003-15318, FinalOrder, June 25, 2004; 

### Jay K. Selznick, FAA Docket No. CPO2SWOO18, Initial Decision of Administrative Law Judge Richard C. Goodwin, pp. 4-5).


### A. The Evidence
Ms. Julia Turner, a flight attendantfor ChampionAirlines, was Complainant’s first witness. Ms. Turner was credible. She testiedthat she was assigned to the forward galley on Championflight 326 on the date 

### in question. The flight normally takes about 

### two hours, forty-five minutes (Tr. 14-15, 23). Ms. Turner was responsible for passengers in rows 1through 9. Respondent Frabotta, she stated, was in an aisle seat in Row 

### 5, designated as 

### 5D, and her companion, Respondent Eichman,was sitting beside Frabotta in aisle 

### 5, toward the outside bulkhead (Tr. 15-17). Some time after the flight becameairborne Ms. Turner served Respondents orange juice at their request (Tr. 17). Their conversation,which included 

### two men in the row behind them in Row 6, became loud. Ms. Turner twice asked the passengers to quiet down. The 

### two men complied, but not Frabotta and Eichman; their behavior became louder and more obnoxious. Their raucous 

### speech included foul language (Tr. 19-23, 24, 

### $3). They used “the F-word,” Ms. Turner said, and they called the lead flight attendant, Julie Carr

# -who left her post to help deal with these passengers 

## - a “bitch” as well as a “F-ing bitch’’ (Tr. 20, 27, 34). As Ms. Turner stated, their language was “horrible” (Tr. 19). PatrickThatcher, a passengerseated nearby and an air carrier professionalwho overseesthe St. Louis operations of American Airlines 

### (Tr. 

### 38-40), supported Ms.
My offce received an unsigned letter purportedly from Respondentsrequesting a postponement ofthis case on account oftheir honeymoon. The letter is dated July 19,2005, but lacking a certificateof serviceor other attestation, it cannot be presumed that it was sent at that time. What is known is that it arrived on August 1in my office in Washington, D.C. 

### -after the hearing had started 700miles away in Chicago.

set by Hearing Notices in each matter served April 26,2005. I found that Respondents were properly served with these notices. Tr. 9. As such, they had more than two months to make a timely request forpostponement. Respondent Frabotta in Edct had spokento my staffabout their purported conflict on earlier occasions, andmy staff had informed her 

### -- several times 

## -- ofthe need to request a continuance. See Tr. 4. Respondents failedto do so. Continuances are not granted at such a late dlf’e absent truly exigent and unforeseen circumstances. Plainly, Respondents’ request is not in that category, Indeed, the timing ofthe request appearsto mock the integrity ofthe hearingprocess.

Respondents’ request is denied. The hearing dates ofAugust 1-3, and the time and location ofthe hearing, had been3
Turner‘s testimony. Thatcher also was credible. Heagreed that Respondents were “loud, vulgar” and “abhorrent” (Tr. 40-41). He supported Ms. Turner’s contention that Frabotta called the flight attendants “F-ing bitches” (Tr. 44). Respondentscontinually “badgered” the attendants, he added (Tr. 

### 43). Thatcher 

# - and other passengers 

# - also saw Frabotta make an obscene hand gesture and/or raise a fist to the attendants’ backs as they walked away from their various conversations with Respondents (Tr. 28,43-44). The attendants, by contrast, remained unruffled and acted in a professional manner throughout (Tr. 45). 

### A short time after Ms. Turner served Respondentsthe orangejuice, a note from a nearby passengeralerted Turner and lead flight attendant Carr that Respondents were serving something out of a bottle which they were passing betweenthem and to the 

### two men behind them. When 

### Ms.Carr asked Respondents for the bottle, they denied having one. But 

### Ms. Turner smelled liquor on their breath. As time passed, she added, they appeared “more and more intoxicated” (Tr. 17-19, 

### 22-23). Her observations, againstthe background of nineteenyears’ experience as a flight attendant, caused her to conclude that they were drinking alcohol (Tr. 

### 24,31). No flight attendant had sold them an alcoholic beverage (Tr. 

### 31-32).Thatcher, the passengerwitness and American Airlines official, supported Ms. Turner’s conclusion. He stated that he observed Respondents pouring liquid from a bag stowed under their seats. They mixed the liquid into a cup and then slid the bag back undertheir seats after sharing itwith the men in Row 

### 6 (Tr. 

### 41-42). This vexing situation prompted lead flight attendant Carr to see the captain (Tr. 

### 26). She returnedwith a violation notice. Respondents reacted to her explanation of the notice with more obstreperous comments sprinkled with foul language (Tr. 27). And when Ms. Carr asked Respondentsfor proper identification, they refused to supply it 

### (Tr. 30-31). Finally, when Ms. Turner asked Respondent Frabotta

## -- several times 

# -- to turn off her cell phone, Frabotta failed to do so (Tr. 

### 28-30, 32). Frabotta and Eichman, in sum, were singularly uncooperative (Tr. 

### 25). Passenger Fletcher concludedthat Respondents “did not comply with anything that the flight attendants had requested” (Tr. 

### 43). Dealingwith Respondents probably required 

### an hour to an hour-and-a-half ‘br more” of Ms. Turner‘s time 

### on this two-hour, forty-five minuteflight, the flight attendant stated (Tr. 

### 23-24). Bothflight attendantswere forced 

### to leavetheir duties to attend to them (Tr. 

### 33). Itwas a “never-ending battle,” Fletcher added (Tr. 

### 43), just a “constant disruption” (Tr. 46).
The nature and context of the Respondents’ behavior, moreover, created an unnerving situation. As 

### Ms.Turner observed, loud, uncooperative, liquor-fueled and obscenity-spewingpassengers like Respondents are fundamentally unpredictable. You do not knowwhat they may do next. As such, it is imperativeto be 

### on your toes 

### (Tr. 

### 24). And in a metal tube hurtling at tap speed with many passengers (including children) looking on, the situation becomes particularly disquieting. Several passengers in fact appeared upset and were complaining about the 

### two of them (Tr. 

### 26). Ms. Turner4

summarized that Respondents’ conduct created 

### an atmospherethat was “very tense’’ (Tr. 24). She felt threatened (Tr. 

### 25).
B. 

### Conclusions
I conclude that the agency has proven each of the charges against each of the Respondents. The evidence showed that both Frabottaand Eichman were drinking alcohol which the crew had not supplied them. As such, 

### I concludethat each of them violated $121.575(a). 

### Iconclude also that Frabotta, by failing and refusing to turn off her cell phone, violated §91.2l(a)(l). Finally, Iconclude that both Frabotta and Eichman violated s121.580. Flight attendants are on board to “ensure passenger safety” (Tr 53; 

### see also Tr. 46). Their main and overriding responsibility is to instruct and handle the passengers in case 

### of an emergency, such as rapid decompression 

### or an emergency evacuation. In only a secondary sense do their duties includethe maintenance of passengercomfort (Tr. 53- 54). Plainly, Respondents’ behavior

# -which Ifound at the hearing to be inexcusable and outrageous (Tr. 57, 59) 

# - disrupted the crew’s duties (Tr. 

### 32-33). Two flight attendants needed to leave their assignments for substantial periods in order to deal with them. And the intimidating character of Respondents’ behavior itself interfered with the attendants’ responsibilities. 

### In sum, the facts amply proved interference with the performance of a crewmember‘s duties in violation of $1 21.580.2 Complainant also demonstrated that Respondents’ behavior threatened a crewmember inviolation of 5121580. As stated, flight attendant Turner felt threatened simply by their aggressive and defiant conduct. Giventhe tense atmosphere generated by their disruptive behavior

# -which risked spinning out of control 

## -- Turnerk fear was entirely rea~onable.~


### In.Penaltv
I have determined to assess against Respondent Frabotta a civil penalty of $3,300, and against Respondent Eichman a civil penalty of $2,200. Air carrier inspector (and retired pilot) Donald Dunn of the St. Louis Flight Standards District Office (FSDO), the agency’s final witness, was FAA’s investigator 

### in charge of this case (Tr. 4748). By taking 

### two flight attendants away from their primary responsibilities, inspector Dunn stated, Frabotta and Eichman created an undue risk of danger aboard the aircraft had the flight presented an unsafe condition (Tr. 46) Additionally, failure to turn off a cell phone creates an unwarranted risk of interference with an aircraft‘s sensitive communications equipment (Tr. 29).

-. §ce Tr. 35. Frabotta’sbehavior is particularly egregious in view ofher assertion that her father is apilot and she
This conclusionmakes it unnecessary to decidewhether “threatening”under &e regulation requires a subjective or “knew all the rules.” See Tr. 30.

an nhjective evaluation. Respondents’ actions met either test.5

It simply is critical that passengers respect and obey flight attendants’ instructions

. under all circumstances. Failure

### to do 

### so not 

### only creates 

### an undue risk 

### of peril but breaks down the integrity of a process primarily designedto ensure safe travel for passengers and crew. Against this background 

### Ifully endorse inspector Dunn’s recommendation of the maximum $1,100 civil penalty per violation (see Tr. 51-52). 

### Infact (as Istated at the hearing) 

### I would have issued a greater penalty had one been sought4
Based upon the foregoing, then, 

### Ifind and concludethat (I) Respondent Tara J. Frabotta violated §§121.575(a), 121

### 580, and 91.21(a)(1) as charged, and Ihereby assess against her a civil penalty of $3,300; and (2) Respondent Joseph M. Eichman violated §§121.575(a) and 121.580 as charged, and Ihereby assess against him a civil penalty of $2,200.5

Administrative Law Judge

Tr. 57. While Complainant sought the maximum civil penalty assessmentper charge filed,it could have preferred additional charges. For instance, in view ofthe fact that two flight attendants were involved, Complainant could have brought two 

### 5 121.580chargesagainst each Respondent rather than one. Respondents additionally interfered with the captain’s duties because he had to call authoritiesto meet Respondentsupon landing. Tr. 31’33. Further,prohity in itself can create an atmosphere sufficientto violate 

### 5 121S80. AvigdorShallit,FAA DocketNo. CP99EAOO5 1 Initial Decision ofAdministrativeLaw Judge Burton S. Kolko dated September22,2000,2000 FAA Lexis 955.

Any appeal fromthis orderto the Administratormust be in accordance with section 13.233ofthe Rules ofPractice, which requires 1)that a notice of appealbe filed no later than 10 days (plus 5 for mailing) fromthe date ofthis order and 2) that the appeal be perfected with a written briefor memorandum not later than 50 days(plus 5 for mailing) fiom the date of this order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 IndependenceAvenue, Washington, DC 20591, and to agency counsel. Service upon the presidingjudge is optional.FAA Docket Nos. CP04CEO08 and CP04CE0009 (Civil Penalty Action) SERVICE LIST ORIGINAL& ONE COPY Hearing Docket Federal &4viation Adininistration 800 Independence Avcnue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building
-Room !0 14’
ONE COPY
Joseph M. Eichman 822 N. Rockwell Chicago, IL 60622 TEL: (773) 220-170 1
John W. Escott. Esq. Office of the Regional Counsel Central Region, ACE-7 Federal Aviation Administration DOT Building 901 Locust, Room SO6 Kansas City. MO 64 106-2641
TEL: (816) 329-3762 FAX: (816) 329-3771
The Honorable Richard C. Goodwin Administrative Law Judge Office of Hearings,M-20 Rooin 54 11 U.S. Department ofTransportation 400 Seyenth Street, S.W. Wasllington,D.C. 20590
TEL: Attorney (202) 366-694 1; Legal Assistant (202) 366-5121 FAX: (202) 366-7536

Senricenas by U S Mail F 3r senice in person or by expedited couner. use the lbllowiiigaddress Hearing Docket. Federal Aviation Admmstration. 600 Independence Avenue. S W



### .Wilbur Wright Building - Ro~ni 2014. Wasliington,DC 20591. Attn fitariiigDocket Clerk. AGC-430 1